73 Wis. 445 | Wis. | 1889
The testator, Abram Ehle, died seized of 260 acres of land, consisting of six forties, and a narrow strip of twenty acres on the west side thereof, all in compact form, and being 240 rods in length, north and south, and 173-J rods in width, east and west.
1. It is claimed that the will only covers 160 acres of
2. But we are not prepared to hold that the description of the 100 acres, attempted in the second clause of the will, is sufficiently definite and certain to be supported. True, it is to be divided by north and south lines into three equal parts, and the western third is to embrace the residence and farm buildings. Neither the length nor the breadth of such parts, however, are given. They may be the whole length of the farm, — 240 rods,— or less than 148 rods, or at any point’ between those distances. Of course, the width would increase as the length diminished. If we understood counsel correctly as to the location of the buildings, and we assume that the lengths of such’ strips were calculated to extend the whole length of the farm, then it is very plain that the west line of such 160 acres might be the west line of the whole farm, or the 160 acres might be moved gradually eastward, until such west
3. This brings us to the important question of fact, whether the testator, Abram Ehle, and his son, James A. Ehle, or either of them, survived all three of the infant children. The determination of the question depends upon inferences and conclusions to be drawn from facts and circumstances in evidence and which are substantially undisputed, and the rules of law applicable as to the burden of proof. To enable us the better to educe such inferences and conclusions in the light of the legal principles applicable, it seems to be necessary to briefly state the situation on the night of this horrible disaster.
The house consumed was a wooden structure, and had been built about thirty-three years. The main part was two stories high, thirty-four feet long and twenty-four feet wide, with a cellar under the whole, and the front end facing the north. In the west third of this main part there was a front and back hall leading from the front door south to the kitchen in an addition or extension. Rear the front door, and opposite the foot of the stairway leading above, was a door leading eastward into the front room, which was about eighteen feet long and sixteen feet wide. Immediately south of this front room was the family room, of about sixteen feet square, witfi two beds in it, in which James and his wife and three children slept. One of'the beds in that room stood in the southwest corner, and was
On either side of the main building there was a wing extending north to within two or three feet of the front of the
The old gentleman slept in a bed in the southwest corner of his room, with the head to the west. On the back or south side of his bed was a window looking out into the
No one escaped from the.burning house except the young man. He had been to a neighbor’s the evening before, and returned about half past ten. There was at that time a light in the old gentleman’s room, but none in the kitchen. All had apparently gone to bed. He came through the wood-shed into the kitchen, and locked the kitchen door. "Without striking any light, he passed from the kitchen into his bedroom at the southwest corner of the kitchen, and shut the door, and went to bed with his shirt, drawers, and stockings on. After sleeping for some hours, he was awakened by the barking of the dog in the wood-shed. He first noticed smoke in the room. He jumped up, opened the door into the kitchen, and saw red light and flames therein. The flames from the kitchen struck him in the face, and burned his hair. At the same time he heard the cry of James from the more remote portion of the kitchen directly in front of him, but did not see him, and neither saw nor heard any one else. He jumped back, and then through the window, without lifting it, into the woodshed. He reached back through the window for his trunk, just beneath, but the fire was so intense as to compel him to desist.
The facts and circumstances thus summarily given induce the conviction that the fire originated in the room occupied by the old gentleman, either by the falling of coals from his stove, or more probably by the curtains taking fire from the lighted candle in his hand, while helping himself to medicine or liquor in the closet. The fact that his body was found in the ruins beneath this closet is a very strong circumstance in favor of this latter supposition. Besides, the young man asserts, in effect, that the fire in that corner — -in the back hall, between that closet and the kitchen — seemed to be the strongest when he first went out into the wood-shed; that the old gentleman’s room was full of fire and that the windows had broken through, and that the wind'1 was blowing very strong from the northwest. Assuming that the fire thus originated in the old gentleman’s room, such a wind would naturally blow it through his door, into the back hall, and from thence through the door into the kitchen, which was substantially the condition of things disclosed by the evidence upon such first discovery. So it would naturally blow from the back hall through the door into the family sleeping-room. But had the fire originated in the family room, with the wind blowing hard from the northwest, as it did, the fire would naturally have been more advanced and intense in that part of the house, and less, advanced and intense in the vicinity of the old gentleman’s room and closet, the back hall, and the part of the kitchen adjoining, than appeared upon such first discovery. The inevitable conclusion from all the evidence is that the fire originated in the old gentleman’s room, and that he expired before any other person in the house. Such wras, in effect, the finding of the trial court.
5. The succession to the personal estate of which Abram Ehle died seized is a more difficult and delicate question. By the will he bequeathed such personal estate to his son James absolutely. James, therefore, died seized of such
We are therefore called upon to inquire whether there is any evidence to support the finding that the children and their mother survived the death of James. If the cry of James was evidence that he survived any one, aside from his father, there would be more plausibility in saying it was Mrs. Kinney, as both of their bodies were found beneath the ruins of the same room. Her bedroom was more remote from, the place of the origin of the fire than any one in the house. The young man was manifestly in no more danger in his room than she was in hers, if as much. Rut he heard no cry from her, notwithstanding the door of her room was but a few feet from his. At the time he looked into the kitchen the fire in the northwest corner of that room, where the body of James was found, must have been much more intense than near her bedroom, or in the northeast corner of the kitchen, where her body was found. This being so, we would naturally suppose that she would have made some outcry at the time the young man looked into the kitchen, if she was then in that room.’. Erom her situation, and all the circumstances, it may fairly be inferred that she became suffocated without much exclamation, or else that she did not leave her room until after the young man had escaped into the woodshed, and when the circumstances were more unfavorable to his hearing such cry from her or any of the remaining victims.
But there are other circumstances strongly against the
Another circumstance tends to prove that the fire did not penetrate the family sleeping-room until some time after James had left it, and that is the fact that his wife succeeded in taking the three children from their beds to a
By the Court.- — -Each and both of the judgments of the circuit court are affirmed. In pursuance of the stipulation of the parties on file, the costs and disbursements of both parties herein are ordered to be paid out of the estates in the hands of the administrator.